Pub. 6 2016-2017 Issue 4

O V E R A C E N T U R Y : B U I L D I N G B E T T E R B A N K S - H E L P I N G C O L O R A D A N S R E A L I Z E D R E A M S January • February 2017 13 for banks that were hit by the slew of class actions, there was at least a clear standard and rule. That isn’t the case with the recent spate of lawsuits targeted at website compatibility. There have been proposals and rumblings of standards. The Depart- ment of Justice (DOJ) issued a proposed rule back in 2010 (75 FR 43460) that would affect websites entities, including banks, subject to Title III of the ADA. The DOJ has since backed off and not issued a final rule or any subsequent guidance for Title III entities. Whether websites are even subject to the ADAhad been a hotly debated subject formore than a decade now. For themost part, it is generally settled that websites can be subject to ADA accessibility stan- dards. There is a court split on whether the ADA applies to eCommerce or not. The Ninth Circuit adopted a nexus test for whether the ADA applies to websites. In Weyer v Twentieth Century Fox Film Corp, the Ninth Circuit concluded that there had to be some connection between the website and an actual physical place. Therefore, a service offered at a website would also have to be offered in a brick and mortar store for the ADA to apply to that website. The decision would imply that eCommerce only stores, without a physical place of business, would be exempt from ADA regulations. Case law on this is still evolving, and other courts have come out to state that even website only businesses are subject to the ADA. In either event, most banks would be affected since the vast majority of banks have at least one physical branch in addition to their on- line presence. The biggest issue now is what the website accessibility standards are. The DOJ has issued a new proposed rule for Title II entities, which include state and local governments (81 FR 28657). The rule doesn’t affect banks directly, but does set a standard for what the DOJ considers an accessible website. The DOJ is proposing to adopt a Level AA compliance with the WCAG 2.0 standards for government websites. While there is some clarity coming for Title II entities, the standards are still unclear as to what the DOJ or courts will use as a standard for Title III “places of public accommodation,” which includes financial institutions. The DOJ declined to announce a final rule on Title III web - site applicability in 2015 and they aren’t expected to do so until at least 2018. The lack of action by the DOJ has inspired a spate of lawsuits to settle the question. More specifically, the lawsuits are claiming non-compliance with the WCAG 2.0 standards, and requesting that the courts should adopt those standards when determining whether a website meets ADA requirements. The WCAG standards (Web Content Accessibility Guidelines) have been around since 1999 with the recent iter- ation of the WCAG 2.0 issued in 2010 (guidelines available at www.w3.org/ WAI). There are four basic principles to the WCAG 2.0 standard for website functionality: perceivable, operable, understandable and robust. The principles come with a litany of guidelines and standards, and have different levels of compliance ranging from Level A to Level AAA, depending on the assistive technology embedded in the website. Some requirements include captions for audio, text alternatives to non-text content (i.e. images), and ability to resize text without assistive technol- ogies. All functionality of the website should be operable through a keyboard without the required use of a mouse or specific timings of keystrokes. Financial institutions would be well advised to review theseWCAGprinciples and determine if their websites have such functionality. Any new website or updates to current websites should in- corporate these guidelines as well. But theWCAG 2.0 standard isn’t law, at least not yet. Courts are still unsettled about this, and it is unclear whether providing an alternative, such as a con- nection to a live person or the use of a TTY relay service, would be sufficient. Since most of the lawsuit claims have come in the past year or two, it will take some time for those claims to snake their way through the courts. A court opinion on the matter may not come out for several years. In the meantime, disability attorneys will continue to issue demand letters. The internet has become an indis- pensable tool for commerce and our everyday lives. Access for persons with disabilities is crucial for such persons to function in modern times, and so busi- nesses should endeavor to make their online services available to everyone. The problem, however, is the uncertainty of the standards to which businesses are held. The lack of clarity in the rules has invited unnecessary litigation and with it unnecessary legal costs. The DOJ needs to get on top of this and provide clear guidance onwhat is expected. Until then, we can expect the plaintiffs’ bar to continue to try and settle the debate in courts. Leaving the online community isn’t really an option, so that leaves commu- nity banks with essentially two choices: settle the claim, or take your chances in court. Banks should keep an eye on the evolving litigation and how courts are dealing with these issues. To avoid pos- sible litigation, banks may want to con- sider taking the prudent approach and voluntarily complying with the WCAG 2.0 Level AA guidelines. It’s expected that the DOJ will adopt these standards in 2018 as well. n Dimitris has spent his entire career working with deposit and lending departments of financial institu- tions on both the production and compliance side. He is a graduate of the University of Illinois Law School and has been with Compliance Alliance since September, 2012. Mr. Rousseas has fielded questions on a wide range of legal and compliance issues faced by community banks. Dimitris has written numerous articles for banking publication and presented on a variety of banking topics. Compliance Alliance offers a wide variety of compli- ance support resources. To learn how to put them to work for your bank, call us at (888) 353-3933 or visit compliancealliance.com .